*

tenements, something of which livery of seisin, as heretofore explained, might be made. But enough must have presented itself, in the course of these investigations, to prepare the reader to pursue a similar course of inquiry in respect to another species of property, which, though relating to lands and embraced under the general designation of realty, will be found to differ, in many essential particulars, from that which has been hitherto described. The property now to be spoken of consists of an intangible, incorporeal interest in, or right to, or out of, lands and tenements, of a nature sufficiently permanent to have applied to it the same idea of duration or quantity of ownership or estate as has thus far been applied to corporeal inheritances. They are thus described by Bracton: Incorporales verò sunt, sicut sunt jura, quæ videri non possunt nec tangi.1 Thus A may have an estate in possession in lands during his life; B may have a right to these [*4] on A's death, or may have it upon condition that he survives A, or that A die without children. But he cannot touch or handle this interest; and if he sells it, he can only pass it by deed, since he has no present seisin which he can deliver to the purchaser. Here A has a corporeal and B an incorporeal property in the same land; though B's interest in such a case, so far as it is a reversion or a vested remainder, is considered as of a mixed nature, at one time incorporeal, but capable of becoming corporeal by being united with the possession at the death of A.2 Hereditaments may, on the other hand, be purely incorporeal, as, for example, what are called rights of common, or rights of way appurtenant to other lands. Thus A may own Blackacre, and have a right to go upon B's adjacent land to cut trees to burn on his own, or to pass across B's land to reach his own. Now, this is simply a right which he cannot sell and deliver over to a stranger separate from the land to which it is appendant, — nothing, in other words, corporeal or tangible. And yet it may be an inheritable right, which will survive to his heirs, and in which he may have an estate in fee-simple; or it may be for his life only, in which case he would have a life-estate in it, in the

same manner as he might have in corporeal property. But in no event can an incorporeal hereditament like this become a corporeal one.1 Property like this is not, properly speaking, regarded as a tenement, nor is it land; but being something that is of a permanent nature, and may be inherited, it is called a hereditament.2

2. Blackstone enumerates ten of the purely incorporeal hereditaments. But as neither tithes, advowsons, commons, as understood in England, offices, dignities, corodies, nor pensions, are known to the American law as things of which an estate can be predicated, and as annuities are but [*5] claims of a personal nature, and this rule still ap

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pears to be applied in Pennsylvania, where the statute Quia Emptores has never been adopted,5 — the only classes of incorporeal real property of which it is now proposed to treat are Rents, Franchises, and Easements.

3. Rent is defined to be a right to the periodical receipt of money or money's worth in respect of lands which are held in possession, reversion, or remainder, by him from whom the payment is due. As technically defined, it is something which a tenant renders out of the profits of the lands or tenements which he enjoys.7

4. There was, before the statute of Quia Emptores, a custom for the owner of the feud, on parting with his entire estate, to reserve something to himself and his heirs by way of perpetual periodical service, or an equivalent thereto, by way of rent or return; upon a failure to perform which on the part of the tenant, the owner of the rent might distrain for the same. This right of distress grew out of the tenure existing between the grantor and tenant, the latter owing fealty

1 Wms. Real Prop. 265.

2 2 Bl. Com. 17; Prest. Est. 13, 14. Burton, however, in his Compendium, applies the term "tenement" to incorporeal as well as corporeal hereditaments. Burt. Real Prop. §§ 4, 40; Van Rensselaer v. Read, 26 N. Y. 566; Van Rensselaer v. Platner, 2 Johns. Cas. 26.

By a law of Mass. 1660, no cottage or dwelling-house was to be admitted to the privilege of commonage for wood, timber, and herbage, except "by consent of the town." See Col. Laws, 196; Thomas v. Mansfield, 10 Pick. 367.

4 Wms. Pers. Prop. 165.

5 Wallace v. Harmstad, 44 Penn. 496, 498.

6 Burt. Real Prop. § 1050.

7 Co. Lit. 142 a; Watk. Conv. 273.

as well as rent for the estate. This periodical render was called a rent service. But as the statute of Quia Emptores abolished all tenure between a grantor in fee and his grantee, by destroying the possibility of reversion, it operated to extinguish the fee in the owner of such a rent. But when there is a reversion, as fealty is always due from the tenant to the reversioner, a rent from a tenant for years to his reversioner is still a good rent service, and was treated of accordingly, under the head of Leases and Estates for Years, in a former chapter.2

5. It is not of rent service, as above explained, that it is proposed to treat in this chapter, but of rents, which, from their duration and transmissible and inheritable quality, come under the proper designation of incorporeal hereditaments. These are rents charge and rents seck, or what answer in many cases to both of them, fee-farm rents.8 "There are," say the court in — v. Cooper," two ways of creating a rent: the owner either grants a rent out of it, or grants the lands, and reserves a rent. There is no such thing as a rent seck, rent service, or rent charge, issuing out of a term for years."4 Thus, if an owner of land in fee grants it to another in fee, and in his deed reserves an * annual sum of money, [*6] or something money's worth, to be paid by the grantee

or his heirs or assigns to him and his heirs, or if, being owner in fee of the land, he grants to another and his heirs an annual sum to issue out of his said lands for ever, these annual payments thus granted or reserved are called rents, although not strictly any thing in the way of profits reserved or to be rendered out of the thing granted.5 For this reason, while the

1 Smith, Land. & Ten. 90; 3 Prest. Abst. 54; Burt. Real Prop. §§ 1053, 1054; Van Rensselaer v. Read, 26 N. Y. 563; Wallace v. Harmstad, 44 Penn. 495, 498.

2 Smith, Land. & Ten. 90; Com. Dig. Rent, c. 1; ante, vol. i. c. 10; Com. Land. & Ten. 97.

3 3 Prest. Abs. 54. These answer to Emphyteusis of the Civil Law, the one owing the rent being called the Emphyteuta; though, in its broader sense, Emphyteusis embraced estates for years, where the tenant paid rents. Ayliff, 473,

474.

4

v. Cooper, 2 Wils. 375; Langford v. Selmes, 3 Kay & J. 229. See 5 Bligh, N. 8. 63.

5 Watk. Conv. 273, Coventry's note, 276-8; 3 Prest. Abst. 55.

common law gave to the reversioner, in case of a rent service, the remedy of distress for its recovery if unpaid, there was no such right attached to rents granted or reserved as above supposed, unless it was so stipulated in the deed or indenture by which the rent was created. If the owner of the rent was empowered, at its creation, to enforce its payment by distress, it was considered as charged upon the land, and therefore called a rent charge. If no right of distress was attached to the rent at its creation, it was called a rent seck (siccus), or dry rent, being a mere right to recover the rent, without any right to seize upon the property out of which it was supposed to issue or be derived. By the statute 4 Geo. II. c. 28, § 5,

a right of distress, whether for rent seck or rent charge, was given, so that, by the English laws, the distinction between the two is substantially abrogated.8* In New York, a rent reserved upon a conveyance in fee is a rent charge, and not a rent service.1

6. Before proceeding to speak further of what may be properly called fee-farm rents, which include both rents charge and rents seck, it should be stated, that if, in any of the States, the statute of Quia Emptores has not been

adopted as a part of their common law, rents service in [*7] fee as well as for terms of *years may still be in use. This is the case in Pennsylvania, and many cases have arisen there where the rent granted or reserved was in fee, and, if reserved, has been held to be a rent service, and not a

NOTE. There was, under the feudal law, what was called a quit-rent, which was a fixed sum payable to the lord as seignior of a manor, by a tenant, upon a composition made with the lord, who gave up therefor his claim for indefinite services due from the tenant. 2 Bl. Com. 96; Marshall v. Conrad, 5 Call, 364, 398.

1 2 Bl. Com. 42; Cornell v. Lamb, 2 Cow. 652, 659.

2 Wms. Real Prop. 270; 2 Bl. Com. 42; Cornell v. Lamb, 2 Cow. 652, 659; Wallace v. Harmstad, 44 Penn. 495, 498.

3 Wms. Real Prop. 270, n.

4 Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. Chadwick, 22 N. Y. 33, s. c. 24 Barb. 333; Van Rensselaer v. Smith, 27 Barb. 134, 139; Tyler v. Heidom, 46 Barb. 449, where there is a summary of the various points made and ruled in the Van Rensselaer cases in New York.

5 Scott v. Lunt, 7 Pet. 596, 606; Bradbury v. Wright, Dougl. 627, n.; Co. Lit. 143 b, note 235.

rent charge, and where, as was the case at common law, a release of a part of the land, out of which the ground rent which had been thus reserved issued, discharged the rent pro rata only.1

7. The nature and general incidents of the rents mentioned, regarded as interests in land of which estates may be predicated, are so nearly identical (except in the matter of enforcing them), that it is proposed to consider rents charge and seck together under the term of fee-farm rents. These rents may be created by reservation, by limitation of a lease, or by grant,2 by bargain and sale, lease and release, or covenant to stand seised, which, as the reader will hereafter see, is substantially saying, in any form of conveyance by which lands themselves may be conveyed. Where a rent is granted, it is itself the subject of the grant; where it is reserved, it is the lands that are the subject of the grant, and the rent comes in lieu of the land.

8. The estate in the rent may be a fee-simple, a fee-tail, for life, or for years. To constitute a fee-simple, the rent must be reserved to the grantor, his heirs and assigns, or, if granted, by like words of inheritance. If for years, it may be to one without words of limitation, or, as is often done, to one and his executors, administrators, and assigns. So the limitation may be to one in tail, with remainders over. if created by reservation, be reserved to the feoffor, donor, or lessor, and not to a stranger, and this may be by deed poll. * But it may be created by grant to a stranger." [*8] A rent reserved upon a lease in fee, with a clause of distress, is such an interest in land as may be levied upon for the

The rent must,

1 Ingersoll v. Sergeant, 1 Whart. 337, where the subject is very elaborately examined. Franciscus v. Reigart, 4 Watts, 98, 116; 2 Sharsw. Bl. Com. 42, n. The statute of Quia Emptores forms a part of the common law of New York. Van Rensselaer v. Hays, 19 N. Y. 68; Wallace v. Harmstad, 44 Penn. 495. 23 Prest. Abst. 53.

3 Watk. Conv. 281; 3 Cruise, Dig. 273.

Van Rensselaer v. Hays, 19 N. Y. 68; Watk. Conv. 280, 281 Wms. Real Prop. 275; 3 Cruise, Dig. 590; Tud. Lead. Cas. 177, 178.

5 Though Burton says a reservation of a rent to a stranger would proba bly be considered a grant to him. Burt. Real Prop. § 1103; 3 Cruise, Dig. 278; Lit. § 346.

2 Dane, Abr. 452.

7 Ingersoll v. Sergeant, 1 Whart. 837